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Mitchell v. Kohl

United States District Court, D. Nebraska

February 3, 2016



John M. Gerrard United States District Judge

This matter is before the court on initial review of Plaintiff Earl Mitchell, Jr.’s, Amended Complaint (Filing No. 18). For the reasons discussed below, the court will dismiss Mitchell’s claims without prejudice to reassertion in state court.


Mitchell is incarcerated at the Nebraska State Prison (“NSP”) in Lincoln, Nebraska. His allegations are based on incidents that occurred in 2013 while he was incarcerated at the NSP.

Mitchell alleged that, in May and July of 2013, prison medical staff-Defendants Dan Danaher and Shawn Luebbe-diagnosed him with the beginning stages of carpal tunnel syndrome. They prescribed medication, exercises, and hand splints. (Filing No. 1 at CM/ECF p. 2.)

Mitchell’s condition deteriorated, and he continued to complain to medical staff. On July 31, 2013, medical staff evaluated Mitchell in response to his complaints of body spasms, hand twitching, and weakness. Mitchell was informed that he would be scheduled to see an outside specialist so that he could undergo testing for carpal tunnel syndrome. In addition, Mitchell underwent an x-ray, “which revealed nothing.” (Filing No. 1 at CM/ECF p. 3.)

On August 13, 2013, Mitchell was tested for carpal tunnel syndrome, and the condition was “ruled out” as the cause of Mitchell’s symptoms. (Filing No. 1 at CM/ECF p. 4.) On August 16, 2013, Defendant Randy Kohl, a prison medical director, approved Defendant Christina Ferguson’s request that Mitchell undergo an MRI. (See Filing No. 1 at CM/ECF p. 41.) Mitchell complains that he did not undergo the MRI until nearly two months later, on October 4, 2013. This MRI revealed that Mitchell needed emergency surgery because he was “inches from paral[y]sis” due to a bone “leaning on [his] spinal cord.” Mitchell underwent emergency surgery on October 5, 2013. (Filing No. 1 at CM/ECF p. 4.)

To date, Mitchell suffers from “permanent nerve damage, permanent impaired motor skills, [and] uncontrolable [sic] spasms in [his] upper and lower extremities.” (Filing No. 1 at CM/ECF p. 5.)

Mitchell argues his medical providers at the prison should have known he was suffering from something more severe than carpal tunnel syndrome, and they should have scheduled him for an MRI sooner. (Filing No. 18 at CM/ECF p. 7.) For relief, Mitchell seeks damages in the amount of $1, 000, 000.00.


The court is required to review prisoner and in forma pauperis complaints seeking relief against a governmental entity or an officer or employee of a governmental entity to determine whether summary dismissal is appropriate. See 28 U.S.C. §§ 1915(e) and 1915A. The court must dismiss a complaint or any portion of it that states a frivolous or malicious claim, that fails to state a claim upon which relief may be granted, or that seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B); 28 U.S.C. § 1915A(b).

Pro se plaintiffs must set forth enough factual allegations to “nudge[] their claims across the line from conceivable to plausible, ” or “their complaint must be dismissed.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 569-70 (2007); see also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (“A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”).

“The essential function of a complaint under the Federal Rules of Civil Procedure is to give the opposing party ‘fair notice of the nature and basis or grounds for a claim, and a general indication of the type of litigation involved.’” Topchian v. JPMorgan Chase Bank, N.A., 760 F.3d 843, 848 (8th Cir. 2014) (quoting Hopkins v. Saunders, 199 F.3d 968, 973 (8th Cir. 1999)). However, “[a] pro se complaint must be liberally construed, and pro se litigants are held to a lesser pleading standard than other parties.” Topchian, 760 F.3d at 849 (internal quotation marks and citations omitted).

Liberally construed, Plaintiff here alleges federal constitutional claims. To state a claim under 42 U.S.C. § 1983, a plaintiff must allege a violation of rights protected by the United States Constitution or created by federal statute and also must show that the alleged deprivation was caused by conduct of a person acting under color of state law. We ...

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